The Topps Co. has filed a patent and trade-dress infringement lawsuit against Koko’s Confectionery & Novelty Inc. alleging that Koko’s Squeezy Squirt Pop copies some features of the Juicy Drop lollipop. Topps Co. v. Koko’s Confectionery & Novelty Inc., No. 16-0595 (S.D.N.Y., filed July 26, 2016). The complaint targets Squeezy Squirt Pop’s logo, font, bright and vivid colors set against a black background, flavor names and the appearance of the word “pop” as infringing trade dress. In addition, Topps asserts ownership of a patent on “a combination lollipop candy and flavored liquid dispenser”; a Squeezy Squirt Pop “combines a lollipop with a flavored liquid in a squeeze dispenser that is then squirted into a trough-shaped cavity in the lollipop itself so that it can then be licked off.” For alleged patent infringement, trade dress infringement and a violation of the Lanham Act, Topps seeks an injunction, an order recalling the…
Category Archives Litigation
A consumer has filed a projected class action against Drew’s LLC, maker of Drew’s salad dressings and marinades, alleging the company misrepresents its products as “all natural” because they contain xanthan gum, disodium phosphate, lactic acid and citric acid. Haack v. Drew’s LLC, No. 16-6022 (S.D.N.Y., filed July 28, 2016). The complaint cites draft guidance from the U.S. Department of Agriculture distinguishing natural and synthetic ingredients and guidelines from the U.S. Food and Drug Administration to support the argument that a reasonable consumer would be confused by the company’s use of “natural” on its packaging. “Consumers lack the meaningful ability to test or independently ascertain or verify whether a product is natural, especially at the point of sale,” the plaintiff asserts. “Consumers would not know the true Nature of the ingredients merely by reading the ingredients label.” For alleged fraud and violations of New York and other state consumer-protection laws,…
Four consumers have filed a putative class action against Barilla S.p.A. alleging the company sells its specialty pasta and standard pasta products in nearly identical boxes but underfills the specialty boxes, amounting to unpermitted slack fill. Berni v. Barilla S.p.A., No. 4196 (E.D.N.Y., filed July 28, 2016). In addition to its traditional pasta products, Barilla sells gluten-free, “Protein Plus” and whole-grain varieties of pasta. The specialty and traditional pastas appear to be sold in similar amounts, the complaint asserts, but the specialty boxes actually contain less pasta—while one box of penne contains 454 grams, for example, the “Protein Plus” variety contains 411 grams and the gluten-free version contains 340 grams, despite being sold in similarly sized boxes. This discrepancy results in the specialty boxes including about 10 to 25 percent non-functional slack fill, the plaintiffs allege. For an alleged violation of the New York Business Code and an unjust enrichment…
The Washington Legal Foundation (WLF) has filed an amicus brief with the Ninth Circuit Court of Appeals arguing the court should enjoin a San Francisco statute requiring advertisements of sugar-sweetened beverages (SSBs) to disclose health warnings related to their consumption. Am. Beverage Assoc. v. City of San Francisco, Nos. 16-16072 and 16-16073 (9th Cir., amicus brief filed August 4, 2016). The brief argues that the government cannot compel speech unless the speech is designed to dispel deception, and San Francisco has failed to show the warning prevents consumer deception. “The First Amendment protects not only the right to speak but also the right not to speak,” WLF Chief Counsel Richard Samp said in an August 4, 2016, press release. “In the absence of evidence that advertisements for sugar-sweetened beverages are deceiving consumers, soft drink manufacturers should not be required to include ominous health warnings in their ads.” Issue 613
Following an investigation into potential criminal violations of federal immigration laws, Mary’s Gone Crackers Inc. will pay $1.5 million and establish a corporate compliance program but will not be prosecuted, the U.S. Department of Justice has announced. The investigation determined that 48 of the company’s employees were ineligible to work in the United States; Mary’s informed Immigration and Customs Enforcement that the employees had left the company, but further investigation found that Mary’s hired at least 13 of those employees back under different names. In addition to the $1.5-million payment, Mary’s must establish an anonymous tip line for employees to report noncompliance issues, provide I-9 training to employees and report compliance measures to the U.S. Attorney’s Office for two years. Issue 613
Two horse owners have filed a lawsuit against Archer Daniels MidlandCo. alleging feed produced by its subsidiary, ADM Alliance Nutrition, was contaminated with monensin, a cattle-feed additive poisonous to horses. Berarov v. Archer Daniels Midland Co., No. 16-7355 (N.D. Ill., filed July19, 2016). The plaintiffs argue that ADM knowingly manufactured cattle feed containing monensin in the same facility as its horse feed and supplement production, resulting in cross-contamination between the two. The complaint details the effects of monensin on horses, including equine heart failure and other major organ damage, which the plaintiffs argue can occur with doses as low as 1.38 mg/kg of body weight. In a statement,ADM disputed this toxicity level, arguing that a horse can safely consume 9.5 mg/kg of body mass, according to the complaint. For allegations of negligent misrepresentation, strict product liability, unjust enrichment, breach of warranties and violations of Illinois consumer-protection laws, the plaintiffs seek class…
A California federal court has granted certification to a class of consumers alleging that Salov North America Corp., maker of Filippo Berio olive oil, misleads consumers by labeling its oil as “Imported from Italy” even though most of the oil is produced in Tunisia, Greece and Spain. Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., order entered July 15, 2016). The court dismissed Salov’s arguments against the plaintiff serving as class representative because of her felony record and her friendship with class counsel, finding that the charge of driving under the influence does not call her honesty and integrity into question and that the plaintiff’s friend is one of several class counsel in the case. Additional details about the case appear in Issues 554 and 590 of this Update, while details on class certification in the plaintiff’s lawsuit against Safeway involving similar allegations appear in Issue 606. …
A Florida federal court has dismissed a putative class action against The Wendy’s Co. alleging the company failed to adequately secure its customers’ financial information but granted the plaintiff leave to amend. Torres v. Wendy’s Co., No. 16-0210 (M.D. Fla., order entered July 15, 2016). The court found that while the plaintiff’s financial information had been fraudulently used to complete two transactions, “other district courts have concluded that mere fraudulent charges on debit or credit cards do not rise to the level of actual identity theft sufficient to establish standing.” Further, because the charges were reimbursed by the plaintiff’s credit union, he had “not alleged any monetary harm stemming from the two fraudulent charges.” The plaintiff also argued that he and the putative class had standing because of the threat of future harm because they must monitor for future identity theft. The court distinguished the facts at issue from a similar…
The Ninth Circuit Court of Appeals has reversed a lower court’s grant of summary judgment in favor of Jim Beam Brands Co. in a lawsuit alleging the company infringes JL Beverage’s Johnny Love Vodka® trademarked logo, an image of puckered lips. JL Beverage Co. v. Jim Beam Brands Co., No. 13-17382 (9th Cir., order entered July 14, 2016). Details on the complaint appear in Issue 387 of this Update. Bottles of Johnny Love Vodka® feature the name of the brand with a set of puckered lips replacing the “O” in “Love,” which are then colored to represent the flavor of the alcohol. In 2010, Jim Beam Brands redesigned the Pucker® Vodka brand to emphasize a similar set of puckered lips and variety of colors alternated to coordinate with the flavor of the vodka. JL Beverage filed an infringement lawsuit after the company’s customers reported confusion about Pucker’s redesign; the district…
A deaf consumer has filed a lawsuit against Taco Bell Corp. and two franchisees alleging the company discriminated against her by refusing to allow her to order from the drive-through window. Cirrincione v. Taco Bell Corp., No. 33-0001 (D.N.J., filed July 13, 2016). At one location, the plaintiff alleges she wrote her order on a piece of paper and handed it to a Taco Bell employee at the drive-through window, and a manager then “berated Plaintiff for utilizing the drive through and for placing her order at the ‘pick-up’ window” because it “interfered with the desired flow of business.” At another location, the plaintiff asserts she again wrote her order and handed it to an employee, then “the note was slipped back through the drive-through window,” the window was shut and the order was not processed, “and no Taco Bell employee communicated with Plaintiff in any way, leaving Plaintiff humiliated,…
